Entrapment is neither an immunity from arrest nor a bar to prosecution; instead it is a defense that may be asserted by a defendant at trial, and which he has the burden of proving to the jury by a preponderance of the evidence. People v. Sherow (2011) 196 Cal.App.4th 1296, 1307.
In California courts (the federal doctrine is different), a defendant can escape conviction for a crime he in fact committed by proving that he did so in response to law enforcement conduct that was so overbearing it was “likely to induce a normally law-abiding person to commit the crime.” People v. Barraza (1979) 23 Cal.3d 675, 690.
Defendant need not admit the crime to assert an entrapment defense, Id., at 692; and his criminal predisposition is irrelevant. Id., at 688-89. Entrapment must be raised at trial, not for the first time on appeal. People v. Pijal (1973) 33 Cal.App.3d 682, 692.
“The law does not recognize a defense of vicarious entrapment.” People v. Vo (1989) 213 Cal.App.3d 689, 695 (Officer pressures agent-A to get B to commit a crime, but A uses no pressure against B: no entrapment). However, if the agent does use overbearing techniques to induce a third party to commit a crime, the defense of entrapment lies. People v. McIntyre (1979) 23 Cal.3d 742, 747-748 (Officer does not pressure agent-A, but A pressures B to commit the crime: B is entrapped). In California, “We reject the doctrine of sentencing entrapment.” People v. Smith (2003) 31 Cal.4th 1207, 1216 (OK for undercover agent to supply enough drugs to invoke enhancement).
The cases that have involved this issue observe that Overbearing conduct could include an appeal to sympathies or emotions, a guarantee that the act was not illegal or would go undetected, an offer of exorbitant gain, or other inducement that would make the crime unusually attractive to a normally law-abiding person. Barraza, at 690. Examples: repeatedly cajoling a reluctant, recovering addict to arrange a drug sale (Barraza); exploiting familial relationships during times of family problems to generate an intra-family drug transfer.
However, If officers merely arrange an opportunity for a crime to occur, or do no more than assure a suspect he is not being “set up,” there is no entrapment. Police may use undercover officers, stings, decoys and similar means of apprehending criminals who succumb to temptations a law-abiding person would resist. (Thanks LACBA)